This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
A simple contract is merged in a contract under seal.1 Under the doctrine of merger, delivery of a specialty executed by the debtor,2 extinguishes a simple contract debt. A simple contract for the sale of real property is merged in a subsequent deed, executed and delivered between the parties in full performance of such contract, and so accepted by the grantee; and such deed supersedes such provisions of such contract as are covered by the deed.3 A contract to convey realty, which implies a merchantable title thereto, merges in a deed which is delivered in full performance thereof.4 A provision with reference to a right of way, which is contained in a contract for sale of realty, is merged in the deed given in performance of such contract; and the rights of the parties to such right of way are limited by the provisions of the deed.5 A provision in a contract for the sale of land with reference to the area, is merged for most purposes in the provisions of the covenants of the deed which is given in performance of such contract.6 A contract for the sale of "merchantalle coal" is merged by subsequent deed conveying "all the stone coal" in the specified realty.7 A simple contract to sell a lot for twelve hundred dollars in cash and eighty shares of stock, and providing that a dwelling-house costing not less than four thousand dollars shall be erected by vendee upon such lot before a specified date, and that within ten years no improvement should be erected nearer than thirty feet to the rear building line, is merged by a subsequent deed for such lot delivered between the parties, providing that the grantee should not erect upon the lot within ten years a dwelling not to cost less than three thousand dollars, and should not build any improvement nearer than thirty feet to the front building line.8 A contract for the sale of realty reserving timber is merged in a deed for such realty in which timber is not reserved.9
11 In re Williams, 208 N. Y. 32, 46 L R. A. (N.S.) 719, 101 N. E. 853.
1 England. Price v. Moulton, 10 C. B. 561.
Indiana. Rhoades v. Jones, 92 Ind. 328.
Massachusetts. Banorgee v. Hovey, 5 Mass. 11, 4 Am. Dec. 17.
Minnesota. Griswold v. Eastman, 51 Minn. 189, 53 N. W. 542.
Missouri. Barger v. Healy, 276 Mo. 145, 207 S. W. 499.
New Jersey. Baker v. Baker, 28 N. J. L. 13, 75 Am. Dec. 243.
New York. Howes v. Barker, 3 Johns. (N. Y.) 506, 3 Am. Dec. 526.
North Carolina. Costner v. Fisher, 104 N. Car. 392, 10 S. E. 526.
Ohio. McNaughten v. Partridge, 11 Ohio 223, 38 Am. Dec. 731.
Pennsylvania. Titus v. Poland Coal Co.. 263 Pa. St. 24, 106 Atl. 90.
Tennessee. Nichols v. Thompson, 7 Tenn. (1 Yerg.) 151.
Virginia. Shenandoah Valley R. R. Co. v. Dunlop, 86 Va. 346, 10 S. E. 239
West Virginia. Williamson v. Cline 40 W. Va. 194, 20 S. E. 914; French v. McMillion, 79 W. Va. 639, L. R. A. 1917D, 228, 91 S. E. 538.
Wisconsin. Borchert v. Skidmore Land Co., 168 Wis. 523 [sub nomine, Borchert v. Coons, 171 N. W. 70).
2 Hall v. Hopkins, 14 Mo. 450; Costner v. Fisher, 104 N. Car. 392, 10 S. E. 526.
3 Canada. Carroll v. Fuel Co., 26 Can. 8. C. 181.
Michigan. Seager v. Cooley, 44 Mich. 14, 5 N. W. 1058.
Missouri. Barger v. Healy, 276 Mo. 145, 207 S. W. 499.
New Hampshire. Labonte v. Lacasse,
78 N. H. 489, 102 Atl. 540.
New York. Schoonmaker v. Hoyt, 148 N. Y. 425, 42 N. E. 1059.
Ohio. Brumbaugh v. Chapman, 45 O. 8. 368.
Pennsylvania. Titus v. Poland Coal Co., 263 Pa. St. 24, 106 Atl. 90.
Rhode Island. Abney v. Twombly, 39 R. I. 304, 97 Atl. 806.
Utah. Reese Howell Co. v. Brown, 48 Utah 142, 158 Pac. 684.
West Virginia. French v. McMillion,
79 W. Va. 639, L. R. A. 1917D, 228, 91 S. E. 538.
Wisconsin. Borchert v. Skidmore Land Co., 168 Wis. 523 [sub nomine, Borchert v. Coons, 171 N. W. 701.
4 Tipton v. Ellsworth, 18 Ida. 207, 109 Pac. 134; Wheeler v. State, 190 N.
A contract to convey realty is merged in a subsequent deed executed by a third person if accepted in performance of such contract.10 A contract to convey realty is merged in a subsequent deed executed to the wife of the purchaser in accordance with his instructions.11
The rule of common law on the subject of merger of prior contracts or securities of a lower nature in subsequent contracts or securities of a higher nature, operated frequently so as to defeat the intention of the parties and so as to work serious injustice. While equity could not grant relief where the higher obligation or security was a contract of record, such as a judgment, it could grant relief where the higher contract or security was an obligation under seal; and wherever the common-law doctrines of merger would operate so as to defeat the intention of the parties, and to produce a serious injustice, equity would give relief.
Y. 406, 123 Am. St. Rep. 555, 83 N. R. 54.
5 Abney v. Twombly. 39 R. I. 304, 97 Atl. 806: Reese Howell Co. v. Brown, 48 Utah 142, 158 Pac. 684.
6 Brumbaugh v. Chapman, 45 O. S. 368.
7McGowan v. Bailev, 155 Pa. St. 256 25 Atl. 648.
8 West Boundary Real Estate Co. v Bayless, 80 Md. 405, 31 Atl. 442.
9 Clifton v. Iron Co., 74 Mich. 183, 16 Am. St. Rep. 621. 41 N. W. 891.
l0Slocum v. Bracy, 55 Minn. 240, 43 Am. St. Rep. 400, 56 N. W. 826.
11 French v. McMillion, 70 W. Va. 639, L. R. A. 1017D, 228. 91 S. E. 538.
12 Price v. Moulton, 10 C. B. 561; Banorgee v. Hovey, 5 Mass. 11, 4 Am. Dec. 17.